Kucinich Gets One Right - VERY Right

The President does not have the right to order U.S. citizens assassinated.

In a Congress with approval ratings in the teens, the bizarre and eccentric is hardly unusual, but Congressman Dennis Kucinich stands out even in such low company.  It's not every politician with the - chutzpah? mental illness? - to proudly proclaim in a nationally-televised Presidential debate that, not only has he personally seen a UFO, but he did so at the house of notoriously-loopy actress Shirley MacLaine.  After that, it would be difficult indeed for him to do anything truly shocking.

Yet he has exceeded our expectations: Rep. Kucinich has proposed a bill which not only makes sense on its face, it's urgently needed, and it underscores an essential American principle we have forgotten in recent years.  The Asian Tribune reports:

[Rep. Kucinich] has presented a bill in the House prohibiting killings or assassinations of Americans suspected of working with terrorist groups.

Kucinich's bill was in direct response to an order signed by US President Barack Obama allowing US forces to execute US citizens, such as the US-born Yemeni cleric Anwar al-Awlaki, who are suspected of cooperating with what the US considers terrorist groups.

"It was unacceptable when detainees at Guantanamo were held without due process, especially since many were later exonerated. It is unimaginable that the US would then replace detainment with outright killing," said Kucinich.

"The US government cannot act as judge, jury, and executioner," he declared.

Why are we citing the Asian Tribune instead of, say, the New York Times?  Because with all the powers of Google at our disposal, it's the only remotely reputable-looking source to report this event as of this writing; the other candidates are lefty frothers beneath our notice.  Yet the report is true, as Kucinich's own official Congressional website proudly proclaims.

When the mainstream media steadfastly refuses to report such an interesting and potentially-inflammatory event, it probably means something good is trying to raise its head above the ground.  What Kucinich is trying to do ought to be completely non-controversial.

Should the U.S. government be in the habit of targeting and assassinating specific American citizens, no matter what they've done?  Of course not - the very idea makes a mockery of our American rights, of due process, of our court system, the entire Constitution, and much else.

Citizenship Matters!

What's more, Rep. Kucinich has hit on the key to the whole issue: His bill does not ban the American government from killing our enemies in general, or assassinations, or using Predator drones, or killing bystanders by accident.  It simply would ban the targeted murder of American citizens.

Why is this even an question?  The Constitution could hardly be more clear:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Has there been a trial for Anwar al-Awlaki?  Has he been convicted of a "capital or otherwise infamous crime" under due process of law?  Has he even been indicted by a Grand Jury?  No.

Yes, by all reports he certainly is a terrorist fighting against the land of his birth; if our soldiers happened upon him in anti-American combat on the battlefield and blew a hole in him in the heat of combat, it would be no great loss and no Constitutional violation.

But for the President, on his own say-so, to send killers to target a U.S. citizen no matter how suspect, is appalling.  A law banning this practice should not be necessary; the fact that it is necessary is frightening, and the fact that Rep. Kucinich was the only member of Congress or of the Senate with the integrity to introduce it is scarier yet.

It is a shame and a disgrace that no Republicans have co-sponsored this bill; every one of them ought to.  It was a shame and a disgrace when George W. Bush grabbed civilian American citizen Jose Padilla off a Chicago street and had him hauled off to a military brig on suspicion of terrorism and held him for years without trial.

But at least he didn't have him murdered out of hand, and our court system eventually got the chance to frown upon the situation.  Eventually Bush did the right thing and Padilla got his day in civilian court, where he was properly convicted and imprisoned under the firm hand of justice and due process of law.

The Constitutional Solution

Mr. al-Awlaki is a tougher case to deal with; unlike Padilla, he's not likely to show up in Chicago where our cops can arrest him.  Instead, he skulks around the caves and hovels of the Middle East where our law does not reach.  Surely his American passport shouldn't be a universal shield of defense from justice?

No.  If al-Awlaki's crimes are indeed as foul as the government says, there's another Constitutional clause written just for him:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.  [emphasis added]

Has al-Awlaki been levying war against the United States?  Has he been adhering to our Enemies, and giving them aid and comfort?  If half of what we're told is true, the Feds should have no trouble providing "the Testimony of two Witnesses to the same overt Act."

Then, "The Congress shall have power to declare the Punishment of Treason."  Currently that's death, but the power to declare the death penalty for treason is reserved to Congress, not to the President.

As we've explained before, people who are not US citizens have no right to the full panoply of Constitutional protections; they were never intended that way, and by extending rights to terrorists captured on the battlefield we doom ourselves to fighting the same enemies forever.  Over the centuries, though, countless Americans have fought and died to win and preserve our rights as U.S. citizens.  Will we give them up so cheaply?

Dennis Kucinich's bill is in the finest tradition of American liberty and should be supported wholeheartedly by all lovers of freedom.

Anwar al-Awlaki sounds like the exact opposite.  Fortunately, there's a right way to find out and deal with him: Convict him of treason in open court, or other forum as decreed by Congress, where we can offer him the opportunity to appear but carry on regardless if he doesn't show up.

Then, once he's been found guilty and sentenced to death in accordance with procedures decreed by Congress, then it's time to send the Predators to take him out - and not one moment before.

Otherwise, both our Constitution and our rights are meaningless.  If the President can declare the death by fiat of an American citizen without going through any sort of legal due process, what can't he do?

In that case, being abducted by aliens starts to look, well, not so bad.  What's Shirley MacLaine's address again, Dennis?

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Politics.
Reader Comments
Very interesting. I had not heard of this either. You make a good case as presented.
August 11, 2010 8:32 AM

The courts will have to rule on this question:


The Obama administration will on Monday try to persuade a U.S. judge to throw out a lawsuit challenging its program to capture or kill U.S. citizens who have joined militant groups like al Qaeda, including Muslim cleric Anwar al-Awlaki.

In a test of President Barack Obama's war powers, the Center for Constitutional Rights and American Civil Liberties Union have demanded the program be halted and subject to public scrutiny over when Americans can be targeted.

November 9, 2010 2:21 PM

It took 'em forever, but the Times finally caught up with you. Sort of. They're viewing with concern, not even alarm as with Bush.

Justifying the Killing of an American
The government's legal memo on Anwar al-Awlaki's death is a step, but not enough for a momentous decision to kill one of its own citizens.

The Obama administration apparently spent months considering the legal implications of targeting Anwar al-Awlaki, the American citizen who was killed in Yemen last month after being accused of being a terrorist organizer. It prepared a detailed and cautious memorandum to justify the decision — a refreshing change from the reckless legal thinking of the Bush administration, which rationalized torture, claimed unlimited presidential powers and drove the country’s fight against terrorists off the rails.

But the memo, as reported by Charlie Savage in The Times, is an insufficient foundation for a momentous decision by the government to kill one of its own citizens, no matter how dangerous a threat he was believed to be. For one thing, the administration has refused to make it public or even acknowledge its existence. It was described to Mr. Savage by anonymous officials, and the administration will not openly discuss even its most basic guidelines for choosing assassination targets.

The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.

President Obama said Mr. Awlaki, a radical Muslim cleric, had taken “the lead role in planning and directing the efforts to murder innocent Americans.” The administration said he inspired several planned terrorist attacks, including the attempt to blow up a Detroit-bound airliner on Dec. 25, 2009. (Testimony in the trial of the accused bomber began on Tuesday.) Officials have said Mr. Awlaki’s role went beyond inspiration into operational planning of attacks, though they have not supplied proof of that. If the White House would release the evidence it has to back up these claims, it would have a better chance of justifying the cleric’s death.

The memo, prepared by two lawyers in the Justice Department’s Office of Legal Counsel, said Mr. Awlaki could be killed because he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, but it stopped short of analyzing the quality of the evidence. It said joining an enemy force deprived him of a citizen’s due process rights, citing several Supreme Court rulings that put the protection of innocent lives above the risk of possible death of a suspect.

Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

The Obama administration seems to know that antiterrorist operations do not escape the rule of law. Its case would be far stronger if it would say so, out loud.

When Bush merely locked up an American, they were all over him. Obama kills someone and they ask for more information. Bias is showing!

October 12, 2011 5:09 PM

If your daughter is scheduled to be on a flight. You know without question that an American is in charge of blowing the plane up that she would be on.You can send in a missile and take out this American and other bad people. Would you do it or would you allow the American to carry out his plan?

October 12, 2011 9:33 PM

The Times MAY get it this time.

Who Says You Can Kill Americans, Mr. President?
President Obama should declassify and release the legal analysis he relies on for targeting and killing American citizens.


PRESIDENT OBAMA has refused to tell Congress or the American people why he believes the Constitution gives, or fails to deny, him the authority to secretly target and kill American citizens who he suspects are involved in terrorist activities overseas. So far he has killed three that we know of.

Presidents had never before, to our knowledge, targeted specific Americans for military strikes. There are no court decisions that tell us if he is acting lawfully. Mr. Obama tells us not to worry, though, because his lawyers say it is fine, because experts guide the decisions and because his advisers have set up a careful process to help him decide whom he should kill.

He must think we should be relieved.

The three Americans known to have been killed, in two drone strikes in Yemen in the fall of 2011, are Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico; Samir Khan, a naturalized American citizen who had lived in New York and North Carolina, and was killed alongside Mr. Awlaki; and, in a strike two weeks later, Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.

Most of us think these people were probably terrorists anyway. So the president’s reassurances have been enough to keep criticism at an acceptable level for the White House. Democrats in Congress and in the press have only gingerly questioned the claims by a Democratic president that he is right about the law and careful when he orders drone attacks on our citizens. And Republicans, who favor aggressive national security powers for the executive branch, look forward to the day when one of their own can wield them again.

But a few of our representatives have spoken up — sort of. Several months ago, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, began limply requesting the Department of Justice memorandums that justify the targeted killing program. At a committee hearing, Attorney General Eric H. Holder Jr., reminded of the request, demurred and shared a rueful chuckle with the senator. Mr. Leahy did not want to be rude, it seems — though some of us remember him being harder on former President George W. Bush’s attorney general, Alberto R. Gonzales, in 2005.

So, even though Congress has the absolute power under the Constitution to receive these documents, the Democratic-controlled Senate has not fought this president to get them. If the senators did, and the president held fast to his refusal, they could go to court and demand them, and I believe they would win. Perhaps even better, they could skip getting the legal memos and go right to the meat of the matter — using oversight and perhaps legislating to control the president’s killing powers. That isn’t happening either.

Thank goodness we have another branch of government to step into the fray. It is the job of the federal courts to interpret the Constitution and laws, and thus to define the boundaries of the powers of the branches of government, including their own.


January 17, 2013 7:19 AM
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